1. ' This is a criminal revision application under section 439, Cr.P.C. Read with section 561-A, Cr.P.C.
2. Filed by the applicant, who feels himself aggrieved and dissatisfied with the impugned order, dated 9th April, 2003, passed by learned IIIrd Additional Sessions Judge, Karachi South in Sessions Case No,333 of 1998 State v. Muhammad Younus, whereby an application under section 540, Cr.P.C.
3. Which was filed by the accused/applicant with a prayer before the trial Court to recall the Investigating Officer of the said case, namely Muhammad Sabir for his further cross-examination, on the ground that his deposition was recorded during the trial of the said case earlier than those of P.Ws.
4. Muhammad Ayaz and Dr. Karrar Ahmed, which application was dismissed through the impugned order.
5. ' Learned counsel for the applicant has cited .Shah Nawaz and others v. The State PLD 1959 (W.P.)
6. Kar. 383, wherein it has been held that a Police Officer is to be specifically questioned with regard to the particular piece of evidence with which -the witness needs to be confronted, paras. 17 and 18, at page No,387 read as follows:- "(17) Before we conclude, one important matter of procedure requires to be mentioned. Section 145 of the Evidence Act requires that if it is intended to contradict a witness by a previous statement made by him in writing or reduced into writing, his attention must, before the writing can be proved, be drawn to those passages which are to be used for the purpose of contradicting him. While scrutinizing the record of the present case, we have noticed that there is nothing to show that this essential requirement of law has been complied with. It may be that in fact the witnesses were confronted with the statements used to contradict them, but this should be apparent on the face of the record, and not left to be a mere matter of conjecture. In other words, the Court should make a note showing clearly that the attention of the witness was drawn to the statement in question.
(18) It is of great importance to remember that, when a witness is sought to be contradicted by his statement to the police, his attention has got to be drawn to that part of the statement which is inconsistent with his statement in Court, by reading out to him that particular part of the statement from the copy, so that he may explain the inconsistency. Where a witness has made a long statement to the police, and the only question put to him by the defence is whether a particular exhibit is his statement, it is impossible for the witness to understand what portion of it would be used for contradicting him. When a witness has thus, been confronted with, the statement or particular portions of it, only that much of the statement can be admitted in evidence with which he has thus been confronted and which has subsequently been duly proved. Portions of the copy, therefore, which have been so used should be marked and exhibited in the case. The rule as to confrontation applies to illiterate witnesses."
7. ' Learned counsel has further cited Muhammad Azam v Muhammad lqbal and others PLD 1984 SC 95 (Shariat Appellate Bench) wherein Honourable Supreme Court of Pakistan has, been pleased to rule as under:-- "Sometimes apprehension is expressed that any action by the trial Court under section 540, Criminal Procedure Code would amount to filling the gaps and omissions in the version or evidence of one or the other party. It may straightaway be observed that insofar as the second part of section 540 goes, it does not admit any such qualification instead, even if the action thereunder is of the type mentioned, the Court shall act in accordance with the dictates of the law.
8. In fact the Court has no discretion in this behalf. It is obligatory on it to admit evidence thereunder if it is essential for the just decision of the case. It was held in Syed Ali Nawaz Gardezi v. Lt.-Col. Muhammad Yusuf PLD 1963- SC 51 that even if a witness who is ultimately to be produced by the accused in his defence is examined by the trial Court as a Court-witness at an earlier stage then notwithstanding the fact that the defence would have an extra advantage of putting leading questions to the witness when standing in the witness-box as a Court-witness, it would not effect the power of the Court (under section 540, Cr.P.C.) to summon and examine the witness if of course, as was observed in that case, it was in the interest of justice and thus presumably essential for the just decision of the case. Again in the State v. Maulvi Muhammad Jamil and others PLD 1965 SC 881 when examining the effect of change in the criminal procedure, regarding right to further cross-examination, during the transitional period, this Court held that even though it would be for the benefit of the defence, the trial Court could avoid any prejudice to the defence by acting under section 540, Cr.P.C. After holding so a very weighty observation was made which needs to be reproduced:- ' This section empowers a Court at any stage of inquiry, trial or any other proceeding under the Code, to summon any person as a witness, or recall and re-examine any person already examined, and it is obligatory for the Court to summon and examine or recall and re-examine any such person, if his evidence appears to it essential for the just decision of the case' (underlining is mine).
9. In yet another case Rashid Ahmad v. The State PLD 1971 SC 709, this Court made it more clear that 'a Criminal Court is fully within its rights in receiving fresh evidence even after both the sides have closed their evidence and the case is adjourned for judgment, for, till then the case is still pending.
10. The only question, therefore, is as to whether in the interest of fairness further opportunity should have been given to the accused', and, it was held 'that there is no bar to the taking of additional evidence in the interest of justice, at any stage of inquiry or trial as provided by the provisions of section 540, Cr.P.C.' In these cases if the question regarding so-called filling of the gaps would have been raised more squarely, the answer in view of what has been noticed above would have been the same as already rendered; namely, that if it is essential for the just decision of the case, then the same is the command of the law under the second part of section 540, Cr.P.C. It would not be possible to canvass that when the action under the said provision amounted to so-called filling of a gap, the Court would for this reason, avoid its duty to admit the additional evidence. Two more decisions by this Court as illustrative of the practice, may also be noted. They are: Bashir Ahmed v.
11. The State and another 1975 SCM R 171 and Yasim alias Cheema and another v. The State 1980 SCM R 575.
12. ' Learned counsel has validly argued that the particular pieces of evidence furnished by P.Ws.
13. Muhammad Ayaz and Dr. Karrar Ahmed are to be confronted with their 161, Cr.P.C. Statements of the investigation conducted by the Investigating Officer, and to see whether the witnesses had deposed truthfully for the just and proper decision of the case. Leaned State Counsel also does not support the impugned order for such reasons.
14. ' Under the circumstances, this criminal revision application is hereby allowed, impugned order is set aside and the learned trial Court is hereby directed to re-summon the Investigating Officer of this case and to allow a fair opportunity to the accused for the purpose of his cross-examination with regard to the particular pieces of the evidence of the above-named prosecution witness and then further to proceed with the case, and to decide the same according to law.